This case establishes that a defendant arrested and charged with possession of marijuana may assert the statutory affirmative defense set forth in Michigan's Medical Marijuana Act [in section 8 of the Act], and in so doing, is not required to meet all the [additional] requirements set forth for the broader immunity portion of the act [set forth in section 4].
This essentially translates into the availability of an affirmative defense for a defendant that has seen his treating physician, and where that physician has provided a statement that the defendant is likely to receive a therapeutic or palliative benefit from the use of marijuana.
This Supreme Court decision combines two cases: Alexander Kolanek which is an Oakland County case; and Larry King, a defendant from Owosso, in Shiawassee County.
In Kolanek, the High Court affirmed the Court of Appeals' ruling that a marijuana defendant, in order to assert the section 8 affirmative defense, must obtain his physician's statement prior to his arrest for marijuana possession; not 6-days after as occurred in Kolanek. The significance for defense counsel is that a defendant does not have to have a patient registration card issued by the State of Michigan in order to assert the defense; but the defendant must have at least obtained a physician's statement prior to an arrest for marijuana possession.
This decision is unanimous; 7-0, with no concurrences or dissents. Thus, the ruling is clear: even unregistered defendants charged with marijuana possession are entitled to assert the affirmative defense set forth in section 8; and the Medical Marijuana Act establishes two distinct sections [the broad immunity established in section 4, and the affirmative defense of section 8] which provide for two separate and distinct protections from marijuana prosecution.
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Criminal Law Updates
State, 6th Circuit, Michigan |
DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.
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